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Legislative and Regulatory Update

June 2007 by Scott

• Assembly Bill 1032
Public Lands for the People (PLP) has been extremely busy, trying to fend off several new assaults on the rights of miners.

PLP sent a notice to Ryan Brodderick, director of the California Department of Fish & Game, declaring PLP’s intent to sue if the legislature passes and DFG attempts to implement Assembly Bill 1032 (AB 1032). Copies of the notice of intent to sue were sent to all state legislators.

The bill, introduced by Lois Wolk (D-Davis), would take dredge permit authority out of the hands of DFG and place that authority with the Fish & Game Commission. AB 1032 would give the Commission power to close rivers if species deemed threatened or at risk are merely present, substantially increase dredging permit fees, and prevent mining claim holders from lawfully working their claims.

• Forest Service tries to rewrite Mining Law
PLP is also reviewing the latest attempt by the Forest Service to override the 1872 Mining Law.

The Forest Service published a notice of intent to amend several regulations pertaining to mining under Section 36, Part 261, of the Code of Federal Regulations (36 CFR Part 261). The proposed regulation changes were published in the Federal Register on May 10, 2007.

The Federal Register entry starts, “This proposed rule would allow, if necessary, a criminal citation to be issued for unauthorized mineral operations on National Forest System lands.”

The Forest Service states they are taking this action in response to two court cases.

In US v. McClure, the judge ruled against the Forest Service, stating that the suction dredge operator who had received a citation for not obtaining a special use permit was not required to obtain such a permit. The extraction of minerals is rightfully excluded from such a Forest Service permit because mining is a right authorized by the 1872 Mining Law, not Forest Service regulations.

US v. Lex and Waggener is the other case the Forest Service cited as their reason for the new regulations. In this case, the Forest Service claimed Lex and Waggener were violating Forest Service regulations by camping in excess of fourteen days. But Lex and Waggener were miners. The first judge ruled in favor of the Forest Service, but the miners appealed. Appellate Judge Lawrence K. Karlton reversed the lower court.

Judge Karlton ruled that 36 CFR 261 does not apply to miners who are camping on their claims while engaged in activities related to mining, rather it was meant to cover recreational activities. He wrote, “As the regulations are currently structured, so long as no earth moving equipment or tree-cutting is involved, a miner can camp on his claim indefinitely…”

In our March 2005 issue we warned readers, “The next step we expect is for the Forest Service to try and criminalize the failure to file a Notice of Intent or Plan of Operations by amendment.” This is exactly what the Forest Service is attempting to do.

The proposed amendment seeks to classify use of “any temporary or permanent” structure or object for sleeping as a “residence” for which a Special Use Permit, Notice of Intent or Plan of Operation would be required.

It’s also interesting to note that they include “maintaining” a road or trail as an activity that would require a Permit, Notice, or Plan, even though miners are authorized and expected to carry out maintenance as part of their annual assessment work.

The Forest Service cannot rewrite the 1872 Mining Law; the authority they seek was not granted to them by Congress. It appears that another lawsuit will be necessary to remedy this situation.

The Forest Service is accepting comments on the proposed changes. They must be received by July 9, 2007.

Send written comments to:
   Forest Service, USDA
   Attn: Director
   MGM Staff, (2810)
   Mail Stop 1126
   Washington, DC 20250-1126
Email comments to:
   36cfr228a@fs.fed.us
Fax comments to:
   (703) 605-1575

• California seeks comments from dredgers
Mike Higbee of Armadillo Mining Shop, Dave McCracken of The New 49’ers, and PLP board members will be attending a “workshop” sponsored by the California State Water Resources Control Board.

The Board announced they will be holding a public workshop at 10am, Tuesday, June 12, 2007, regarding suction dredge mining. The stated purpose of the meeting is “to accept public comments regarding the effects of suction dredge mining on water quality.”

The meeting will be held at the Resources Building, First Floor Auditorium, 1416 9th St., in Sacramento, California.

Written comments will also be accepted through June 21, 2007.

Send written comments to:
   Song Her, Clerk to the Board
   Executive Office
   State Water Resources Control
      Board
   PO Box 100
   Sacramento, CA 95812-0100
Email comments:
commentletters@waterboards.ca.gov
Fax comments to:
   (916) 341-5620

(Include “Comment Letter—Suction Dredge Mining” as your email or fax header.)

To view complete copies of Assembly Bill 1032 and the Federal Register Notice published by the Forest Service, visit our website (www.icmj.com) and click on the “Pending Rules and Regulations” bar on the left hand side of the page.

• Support PLP efforts
PLP is also participating in projects in Washington and Oregon. We will report further on these activities next month.

We are extremely pleased with the PLP staff. It is a 501(c)3 non-profit organization staffed completely by volunteers, and they put in countless hours on these matters—for free—to keep public lands open. We committed to provide quarterly monetary contributions several years ago to help support their efforts. With several lawsuits on the horizon, we encourage you to support PLP with a donation, too. They have two fundraising raffles going right now. See page 28 for more information.